The opinion
*314 SCHAUER, J.
I concur. I think it should be mentioned, however, that although in seeking prohibition petitioner appears to have mistaken his remedy, the denial of the petition is without prejudice, and is completely unrelated, to a possible remedy by motion in the trial court to dismiss the action on the ground that the facts bring the case within the provisions of section 581a of the Code of Civil Procedure.
Such facts, as related in the main opinion, show that more than three years elapsed between the time the action was filed against petitioner (defendant in such action) and the time summons was served on him, and also that he remained a resident of California for more than three years after the action was filed. Under such circumstances, in the absence of a showing of facts suspending operation of the statute, it would seem to be the duty of the court on motion of the petitioner or of its own motion to dismiss the main action.